Benefit News

NY Court Strikes Down Portion of FFCRA Regulations

August 10, 2020

In a case brought by the New York attorney general, a New York federal district court has vacated portions of regulations issued by the U.S. Department of Labor (DOL) under the Families First Coronavirus Response Act (FFCRA). The FFCRA provides paid leave for specified coronavirus (COVID-19) related reasons, and generally applies to private employers with under 500 employees, and most public employers, regardless of size. Two types of leave are required under the act: emergency paid sick leave of up to 80 hours, and up to 12 weeks of partially compensated emergency family medical leave under an expansion to the Family and Medical Leave Act.

At this time, it is unknown as to whether the DOL will appeal the decision, or whether other states will bring similar court actions or, if they do, whether courts in other jurisdictions would reach the same result.

Summary Of Court's Decision

The opinion struck down the following provisions in the FFCRA leave rules because they are inconsistent with the law:

  • There is no statutory basis for the requirement that an employer have work available for an employee taking leave as this could “considerably narrow the FFCRA’s potential scope”. The work-availability-requirement is contained in several of the leaves available under the FFCRA;
  • The definition of “health care providers” who may be denied leave is excessively broad;
  • The requirement that employers must first consent to an employee’s request to take leave intermittently, regardless of the reason for the leave; and
  • The requirement that employees provide documentation as a precondition for taking the leave.

As indicated above, there are a lot of unknowns at this time as to the impact this ruling will have outside the jurisdiction of the Southern District of New York. Employers are advised to stay updated on developments in these areas to ensure their FFCRA leave policies comply with the law.

Where To Get More Information

Please also feel free to reach out to your Burnham Benefits Consultant or Burnham Benefits at 949‐833‐2983 or inquiries@burnhambenefits.com. For up-to-date information on COVID-19, please also visit our dedicated Response Center.


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